Citation Nr: 9914325
Decision Date: 05/24/99 Archive Date: 06/07/99
DOCKET NO. 98-02 200 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to waiver of recovery of an overpayment of
improved disability pension benefits.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Elizabeth Gallagher, Associate Counsel
INTRODUCTION
The veteran had active service from March 1963 to March 1965.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 1997 decision by the
Committee on Waivers and Compromises of the Department of
Veterans Affairs (VA) Regional Office (RO) in Cleveland,
Ohio.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. Recovery of the overpayment of $2,828 would cause undue
hardship outweighing the veteran's fault in creating the
overpayment.
CONCLUSION OF LAW
Recovery of the overpayment of $2,828 would be against the
principles of equity and good conscience. 38 U.S.C.A.
§§ 5107, 5302 (West 1991); 38 C.F.R. §§ 1.963, 1.965 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran's claim is "well grounded" within the meaning
of 38 U.S.C.A. § 5107. The Board is satisfied that all
relevant facts have been properly developed and that no
further assistance is required to comply with the duty to
assist mandated by 38 U.S.C.A. § 5107.
The record reflects that this 59-year-old veteran suffers
from medical problems including diabetes mellitus, diabetic
neuropathy, peripheral vascular disease, and emphysema. He
was awarded veteran's improved disability pension benefits,
effective July 25, 1994.
In January 1997, he began receiving Social Security
Administration (SSA) disability payments, but did not report
that fact to the VA. In April 1997, the VA learned of the
veteran's SSA payments and terminated his VA pension
payments. He was notified by VA that he had received an
overpayment of $2,828. In August 1997, he submitted a
request for waiver of the overpayment. The waiver request
was denied in September 1997, and the veteran filed a notice
of disagreement and appealed from that decision.
In January 1998, the veteran submitted a financial status
report which listed his sole source of income as his monthly
$767 SSA payments. He listed his monthly expenses as
follows: rent ($319), food ($200), utilities and heat
($100), car gas ($100), and payment on a hospital bill ($5).
His reported monthly expenses thus totaled $724.
The veteran appeared in August 1998 at a hearing t the RO
before the undersigned member of the Board. At that time, he
testified that his monthly food expense was about $260, and
that he had additional expenses of $35 per month for car
insurance, and $20 a month for life insurance. He further
testified that his hospital bill payment might be as much as
$10 per month. He reported that he always ran out of money
by the third week of each month and had to get short term
loans from his friends. Additionally, he stated that he
could not afford to heat his entire apartment in the winter.
Based on the figures the veteran reported during his personal
hearing, his monthly expenses would thus total $844, some $77
more than his monthly income of $767 from the SSA.
In the Board's judgment, the record supports a finding that
there was no fraud, misrepresentation, or bad faith on the
part of the veteran in failing to report his receipt of the
SSA disability payments. See 38 U.S.C.A. § 5302(c) (waiver
of recovery of a debt will be precluded if any indication of
these elements is found). Thus, waiver of recovery of the
overpayment is not precluded.
Weighing all the relevant factors, the Board is persuaded
that there was minimal fault on the veteran's part in the
creation of the overpayment. Further, taking into account
his testimony before the Board concerning additional
expenditures, it appears that recovery of the debt would
result in undue financial hardship for him, to the extent
that he has no discretionary income apart from his
expenditures for basic necessities even excluding small
payments on a medical bill. Generally, debts owed to the
government should receive the same consideration as any other
debt. The veteran would not be unjustly enriched if a waiver
of recovery of the indebtedness is granted. Accordingly,
waiver of recovery of the overpayment is granted.
38 U.S.C.A. §§ 5107, 5302; 38 C.F.R. §§ 1.963, 1.965.
ORDER
Waiver of recovery of an overpayment of $2,828 is granted.
CHARLES E. HOGEBOOM
Member, Board of Veterans' Appeals